Daniels v. Miller , 8 Colo. 542 ( 1885 )

Stone, J.

The questions presented arise upon demurrer to the petition filed in this court praying for a writ of mandamus to compel the respondent, as clerk of the district court of Arapahoe county, to approve and file a certain appeal bond tendered him for approval as clerk aforesaid in an action pending in said district court.

The petitioner sets forth, in detail, that one Lillian B. Daniels, wife of this petitioner, heretofore filed in said district court her complaint praying that a certain agreement of separation of the said Lillian and this petitioner, as husband and wife, theretofore made and entered into by and between said parties, be set aside, for reasons set forth in the complaint aforesaid, and also praying for specific alimony to be decreed the complainant; but not asking for a dissolution of the bonds of matrimony. For further relief, the complainant prayed that a specific sum be decreed to be paid into court by the said William B. Daniels for costs and for attorney’s fees, and a further sum to be paid monthly as alimony to the complainant pendente lite. That about the same time a certain other complaint was filed in said court by the said Lillian, praying substantially tbe same relief as in the first-mentioned complaint. That full answers were filed to said complaints, and that both parties filed affidavits touching the respective allegations of said complaints and answers. That thereafter the said district court, without a hearing upon the merits of the controversy, but upon the said pleadings and affidavits, ordered, adjudged and decreed that this petitioner, the said William B. Daniels, should pay into court for the use of the complainant, the said Lillian, the sum of $1,000; $700 thereof as attorney’s fees for her counsel, and $300 for her use in procuring testimony, and other expenses in the prosecution of her suit; and also the further sum of $75 per month as alimony pendente lite, until the further order of the said court. That thereupon this petitioner duly served notice of his appeal from all of said order and decree, and that he moved the said court to fix the amount of the bond or undertaking on such appeal, which motion was denied, for the reason that, in the opinion of said court, no appeal lay from said order and decree. That thereafter said petitioner executed a bond, with good and sufficient surety, for the pui-pose of having the same operate as a supersedeas or stay of the said order and decree pending the appeal therein, and tendered the same to the respondent, Henry Sparnick, then clerk of said district court, and asked him to approve the same; but that said respondent, as clerk as aforesaid, refused so to do, and indorsed on said bond his reason for refusal, in the following words and figures, to wit: “Tendered for approval this 29th day of October, A. D. 1885; but I decline to approve this bond, not because of the insufficiency of the surety, but because I feel bound to interpret the order of the district court in this matter as declaring the caseto.be one which does not permit appeal;” and signed- the said indorsement as clerk as aforesaid. The said bond is set out in the petition, and is in the sum of $10,000. Petitioner prays that the respondent Sparnick, as clerk of said district court, be commanded to approve said bond, or show cause, etc.

Upon the facts set out in this petition we allowed the alternative writ, as prayed; counsel stipulating a waiver of the issuance and service of the writ, and that respondent would appear and obey the mandate, by either approving the bond or showing cause on or before a day named. Thereafter, upon the day set for hearing (the respondent Sparnick having in -the meantime deceased, and his successor in office, Arthur. S. Miller, having been substituted as respondent herein), the respondent, by his counsel, appeared; and, instead of obeying the writ, elected to show cause by demurring to the petition on the ground that the facts therein stated were insufficient to warrant the issuance of the writ prayed.

The questions for our determination, upon the issue thus made, depend for solution chiefly upon the terms and construction of the late statute (Session Laws 1885, p. 350), entitled “An act in relation to appeals to the supreme court, and concerning the jurisdiction thereof and practice therein.” The principal question involved is whether the clerk of the trial court has, under said act, discretionary authority to refuse the approval of an appeal bond, on the ground that the judge of said court has held that the order or judgment from which an appeal is sought is not appealable. Underlying this question, and as a corollary thereto, is the question: Has the trial court itself, or the judge thereof, the power or discretion to refuse an appeal, or determine that an appeal will not lie when sought under the provisions of the act mentioned?

The first section of the act declares that “the supreme court has appellate jurisdiction over all judgments and decisions of all other courts of recoi’d, as well in case of civil actions as in proceedings of a special or independent character. * * *”

Section 2 of the act is as follows: “An appeal may also he taken to the supreme court from the following orders made by the trial court, or the judge thereof: First. An order made affecting a substantial right in an action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken. Second. A final order made in special proceedings, affecting a substantial right therein, or made on a summary application in an action after judgment. Third. When an order grants or refuses, continues or modifies, a provisional remedy; or grants, refuses, dissolves, or refuses to dissolve, an injunction or attachment; when it grants or refuses a new trial; or when it sustains or overrules a demurrer. Fourth. An order or judgment of habeas corpus.”

Section 8 of the act, providing the manner of takiug appeals, is as follows: “ An appeal is taken by filing with "the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice of appeal upon the adverse party or his attorney.”

Section 9 declares that, “Upon receipt of such notice by the clerk, and proof of service of a copy thereof on the adverse party or his attorney, and the payment or securing of his fees for the transcript hereinafter mentioned, the clerk shall forthwith transmit to the clerk of the supreme court a transcript of the judgment or order appealed from, or so much thereof as is mentioned in the notice; the notice of appeal, and the undertaking in appeal, if any; and so much of the record in the case additional as the appellant in writing may direct. * * * ”

Section 23 is as follows: “An appeal shall not stay proceedings on the judgment or order, or any part thereof, unless the appellant shall cause to be executed before the clerk of the court which rendered the judgment or order, by one or more sufficient sureties, to be approved by such clerk, an undertaking to the effect that they are bound' in double the amount named in the judgment or order; that the appellant shall pay to the appellee all costs and damages that shall be adjudged to the appellee on the appeal; and also that the appellant will satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render, or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, and all rents or damages to property during the pendency of the appeal, out of the possession of which the appellee is kept by reason of the appeal. If the undertaking is intended to stay proceedings on a part only of the judgment or order, it shall be varied so as to secure the part stayed alone. When such undertaking has been approved by the clerk and filed, he shall issue a written order, commanding the appellee and all others to stay proceedings on such judgment or order, or on such part as is superseded, as the case may be. No appeal or stay shall vacate or affect the judgment appealed from. The undertaking shall in no case be for a less sum than $300; provided, that the trial judge may, on showing of either party, fix the amount of the undertaking. ”

The portions of the statute above quoted we think embrace all the provisions therein which bear upon the questions before us.

Among the radical changes which this statute makes in the practice concerning appeals, it will be observed that no bond is required in taking an appeal unless a stay of the judgment or order appealed from is desired. It is also noticeable that the court or judge has nothing to do in the matter of taking the appeal. Indeed, except in the cases provided for in section 24, where the appellant stands in a fiduciary capacity, or is a municipal corporation, neither the court nor judge has any function to perform in connection with the appeal, unless when the judge may be called upon by either party litigant to fix the amount of the. bond for stay of proceedings. This last provision, we take it, is intended to apply to cases where there is not a money judgment, or where the amount is indefinite, in which case either party may elect to call upon the trial judge to assume the responsibility of fixing the amount of the undertaking.

It was argued by counsel for respondent that this provision that the judge may fix the amount of the bond is to be construed as mandatory in cases where the judgment or order is not for such specific sum as that it may be doubled in the bond; but we are inclined to hold, in view of all the provisions of the statute relating to the taking of the appeal, that the provision in question is directory, and, as we have stated above, permits the parties, or either of them, to elect to call upon the judge for such purpose. Let us see how the law as thus construed would operate. Suppose that, in any case in which this provision is applicable, the appellant chooses to fix the amount of the bond without requesting the judge therefor. If the appellee is dissatisfied therewith, he is at liberty to present a showing to the judge as a reason why the amount of the bond should properly be fixed by such judge. If the appellee takes no steps for such purpose, he may properly be deemed to have no objection, or to have waived objection, to the course pursued by the appellant in the matter. Afterwards, when the appeal has been taken, the appellee has a right, under section 25 of said act, to move, in the appellate court, against the bond, if considered defective or the sureties insufficient. These provisions appear reasonable, and calculated to insure fairness to both parties. On the other hand, if the provision that the judge may fix the amount of the bond were to be construed as mandatory in such cases, and such judge should neglect or refuse to act therein, a difficulty would result which would not be entailed by the other construction we have adopted.

It was strongly contended by counsel for respondent in argument that the writ of mandamus will not lie to compel the clerk to act contrary, to the order of the court or judge; that the judge in this case is the real party against which the writ ought to run, for that the clerk is the mere mouth-piece and recording officer of the judge; and High on Mandamus is cited in support of this contention. What is stated by Mr. High i.n the citation mentioned (section 184) rests upon the cited case of State v. Engleman, 45 Mo. 27, where the court below, on an appeal from its judgment, had granted the appeal on condition that no transcript should be made by the clerk until the appellant had filed an appeal bond; and, on petition for mandamus to compel the clerk to make out the transcript without filing the bond, the supreme court held that while the order of the court below requiring the appeal bond was unwarranted, yet, as the petitioner had a ready remedy by writ of error, which would have taken up the transcript as soon as the unconditional appeal, the writ of mandamus was therefore unnecessary, and was accordingly refused. The case before us is very different. Here the appeal bond in question is for the purpose of operating as a supersedeas, and for that purpose is required by the statute. And in this case there was no remedy by writ of error. In reply to this contention of counsel for the ■ respondent, that mandamus will not lie to compel the clerk to disobey the order of the court or judge, it.was asserted by counsel for petitioner that in this case it is substantially shown by the averments of the petition the court made no order that the judgment or order appealed from is not appealable, and that, therefore, the clerk was not bound by any such order, none having been made. Upon inspection of the transcript filed here in the principal case, we find this statement of counsel to be correct. The order of the court was for the payment of the several sums of money for costs, attorney’s fees, and monthly allowances as alimony pendente lite. The appeal was taken from this order, and the bill of exceptions signed by the judge, after reciting the said judgment or order, and the notice of appeal therefrom, further recites, in conclusion, as follows:

“And having filed the notice of said appeal with the clerk of said court, and having served the plaintiff’s attorney with a copy thereof, said defendant applied to the said court to fix the amount of the appeal bond to be given; which application the said court refused, and declined to fix the amount of said bond, holding that no appeal would lie from the aforesaid order, or any part thereof; to which ruling of the court the defendant also, by his counsel, then and there excepted,” etc.

From which it will be seen that this “ruling” of the court is recited in the bill of exceptions merely as a reason which the judge himself gave for refusing to fix the amount of the bond; and, according to the indorsement of the clerk on the bond, the sole reason for the refusal of the clerk to approve the bond was because he “interpreted” the order of the court in the matter “as declaring the case to be one which does not permit an appeal,” and not for any defect or insufficiency of the bond itself.

It is conceded that mandamus will lie to compel an officer to act only when it is his plain duty to act in the manner prayed for. The question here, then, to be first considered is, was it the clear duty of the respondent to approve the bond tendered in this case?

The bond being good and sufficient, as is admitted, and mot being absolutely required to have the amount therein first fixed by the court or judge, as we hold, and the other prerequisites for taking the appeal having been complied with, under the statute, we think it became and was the clear duty of the respondent to approve and file the bond, ' and to issue the order for stay thereon accordingly, unless the reason for his refusal given by him, as indorsed on the bond, was a sufficient reason for such refusal. This "brings us to consider the question whether the ruling or opinion of the court or judge respecting the appealability of the order appealed from was such as imposed a duty upon the respondent to refuse the approval of the bond, and also whether the court or judge had authority or discretion to make an order or ruling denying the appeal. We think both these questions must be decided in the negative.

It was urged in argument by counsel for respondent that mandamus will not lie to control or interfere with the judgment or discretion of an officer in the performance of an official act, and that in this case, whether it be the act of the court or clerk which is to be affected by the writ, the above principle of the law of mandamus is applicable. Aside from the question of its applicability to this case, the soundness of the doctrine thus announced is unquestioned; and it has been so laid down by this court repeatedly heretofore as a first principle in the law governing the issuance of this writ. But whether there was authority for the exercise of discretion by the judge or clerk in this case is the very question before us to determine. Upon full consideration of the statute under which the appeal in question is taken, and viewing all its parts, with respect to the purpose and intent, as a whole, we are constrained to conclude that it is not within the province or authority of the court or trial judge to determine, for the purpose of preventing an appeal, that a given judgment or order rendered or made by such court or judge is not appealable. The statute itself, in the first two sections of the act, declares in what cases appeals will lie to the supreme court, and this enumeration was doubtless intended to furnish a sufficient guide to both bench and bar. A comparison of the manner in which appeals are taken under this new act with the mode prescribed by the former law will serve to throw light on the legislative intent contemplated by the change. The former law (section 415, Code 1883) required the appeal to be prayed for within a certain time after the judgment; it required a bond, in a “ reasonable sum,” to be filed within a time to be fixed by the court; it required the bond to be approved by the court or by the clerk when the order granting such appeal so directed. Under the present law — the new act — under which the appeal in question was taken, the appellant is not required to pray the court for the appeal; no leave is asked or granted; no bond is required; the statute fixes the amount of the supersedeas bond in ordinary cases, and the judge is only authorized to fix such amount when a showing by one of the parties is made for that purpose. In short, to take an appeal simply, without a stay of execution, no function or act of the court or judge is required or called into exercise. The appeal is taken solely by the act of the party desiring to appeal, upon his filing a notice thereof with the clerk and serving a copy on the adverse party or his attorney. Therefore, without any authority being conferred by the statute upon the court or judge to pronounce his judgment, exercise his discretion, or perform any office whatever in the matter of taking the appeal, there is certainly no statutory warrant for such court or judge to otherwise interfere by determining or declaring that an appeal will not lie in any given case which the appellant himself, by his counsel, may determine is embraced within the appealable cases enumerated in the statute. If the statute warranted it, we should be pleased to come to a different conclusion upon this point, in view of the business of our supreme court, since the unlimited number of appeals that may now be taken - from judgments and orders of the various courts of record opens the doors to a possible abuse, in not only taking appeals for delaying trials and harassing litigants in the trial courts, but also in thrusting upon the supreme court such an increased amount of business as might put it beyond the power of its present number of judges to dispose of without serious delay. It is therefore not without careful consideration that we have come to the conclusion that the authority to decide and determine whether an appeal will lie to this court from a given judgment, decree or order rendered or made in the trial court is vested solely in the supreme court when the matter is brought up. here for review, and- the question properly raised in this court by motion or otherwise. We have not deemed it necessary to refer to the numerous authorities cited and discussed by counsel on both sides in the argument upon hearing, for the reason that they are all either declaratory of or in support of propositions and principles of the general law of mandamus, of unquestioned soundness, and which may be admitted by both sides; or are applicable only to the particular cases cited, and not in point here.

The chief requisites in a petition to warrant the issuance of a writ of mandamus are — First, the petitioner must show a legal right to have the act done which is sought by the writ; second, it must appear that- the act which is to be enforced by the mandate is that which it is the plain legal duty of th'e respondent to perform, without discretion on his part e.ither to do or to refuse; third, that the writ will be availing as a remedy, and that the petitioner has no other plain, speedy and adequate remedy. That the petitioner here has no other such remedy for the purpose of effecting a stay of the judgment and order appealed from is evident from the nature of the case and the provisions' of the statute relating thereto. A writ of error, under our practice acts, will lie only to review a final judgment in a cause, and will not lie to an order in any case, so that the petitioner was without this remedy, if that remedy were even adequate in such a case as this. The only-other remedy suggested by counsel for respondent, in argument, was a suit to l’ecover back the money ordered paid, in case the order therefor should be reversed by the. supreme court; but it is not pretended that this would be a speedy or adequate remedy.

The absolute right to an appeal is given by the statute in the cases specified therein. The right to a stay of the judgment or order appealed from is a right also given by the same statute; and upon compliance with the conditions prescribed, the right to such stay is as clear and absolute as the right to an appeal. The stay is not restricted by the statute to a particular class of cases within those that are appealable. The statute enacts that an appeal shall not operate to stay proceedings unless a bond is executed by the appellant, and approved and filed by the clerk as provided in section 23 of the act (with the exceptions mentioned in section 24), and it seems a plain inference that whenever such bond is given in any case, a right to such stay is given the appellant by force of the statute,— a right which neither the judge nor clerk has 'any authority or discretion to deny. When the requisite bond is tendered, the clerk has only the ministerial duty to approve and file it, and thereupon to issue the order staying proceedings. Section 24 declares that when a municipal corporation is appellant, the court or judge shall direct a stay of execution after appeal, upon the mere motion of the appellant, without the filing of such bond; and it is certainly fair to conclude that the right to a stay which is thus expressed in mandatory terms by the statute to be given where no bond whatever is required, is no higher or more certain right than is conferred upon an appellant in cases where he is required to give a supersedeas bond, as in this case.

I conclude, therefore, upon the facts set out in the petition, (1) that the petitioner had a legal right, under the statute, to a stay of the judgment and order appealed from, and, to effect the same, had a right to have the bond therefor approved by the respondent as the law directs. (2) That the trial court or judge had no authority to prevent the taking of the appeal, nor to adjudge or order that an appeal did not lie. (3) That neither said court nor judge made any order denying the appeal, oi that the same would not lie, and hence there was no judicial interference with the right and duty of the respondent clerk to approve and file the bond tendered. Had such an order been made, a different question would have been presented, and one that we are not now called upon to discuss or decide. (4) That it was not essential to the approval of the bond, or to its efficacy in operating as a stay, that the amount should have first been fixed by said judge. (5) That the action of said judge in refusing to fix the amount of the bond, and his expressed reason for such refusal, furnished no sufficient ground for the respondent to withhold his approval of said bond. (6) That the respondent, as clerk of said court, had no discretion to decline or refuse to approve said bond, and that it was his clear duty to approve the same. (7) That the petitioner has no other plain, speedy and adequate remedy.

The petition being held sufficient, the demurrer thereto is overruled, and the peremptory writ ordered to issue, as prayed. Writ ordered.